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PLAINTIFF SEEKS FOR DAMAGES FOR INJURIES SUSTAINED DUE TO A FERRIS WHEEL ACCIDENT
This case involves the plaintiff seeking for damages after sustaining injuries while riding a ferris wheel which was hit by a plane.
Facts:
Amber Christine Arndell (hereinafter “the plaintiff”) sues both Mid-Coast Council (hereinafter “the Council”, formerly known as Greater Taree City Council) and Paul Clarendon Cox (hereinafter “the Pilot”).
The Pilot was flying a light aircraft which collided with a Ferris wheel, located at the annual Old Bar Festival at Old Bar, NSW (hereinafter “the Festival”). The plaintiff was seated, with her younger brother, in a gondola on the Ferris wheel. The claims in negligence arise out of injuries said to have been sustained as a consequence of that collision.
The Old Bar Airstrip (hereinafter “the Airstrip”), at Old Bar, is operated by the Council through a committee known as the Old Bar Heritage Airport Management Committee (hereinafter “the Airstrip Committee”) for which the Council is responsible. The Festival organisers applied to the Council to use the Council Park and Reserve for the Festival. The Festival organisers applied to the Council to use the land adjacent to the airstrip, which included sporting fields, parks, gardens and the like.
Issue: Are the defendants (Council and Pilot) liable for damages?
Law:
- Civil Liability Act 2002 ss 5B, 5C, 5D, 5F, 5K, 5L, 5R, 16, 17, 18, 42, 43, 43A, 44
Anlaysis:
The Council was fully aware of the operation of the Festival. It controlled whether the Festival should be conducted. Further, it controlled, in the sense that it had the power to refuse permission or to place a condition on permission, the operation of the Ferris wheel and its location. The Council also operated the Airstrip. It was aware of the recommended allowances for landing and taking off and their promulgation in order to avoid risk of collision. The risk of harm from personal injury associated with operating the Airstrip at a time when the Council had permitted the location of the Ferris wheel in a path that obstructed those recommended areas for take-off and landing, is more than reasonably foreseeable.
Plainly, but for the negligence of the Council, either in its approval of the Festival and, in particular, the Ferris wheel, or in its operation of the Airstrip, or both, the injury would not have occurred. The Council’s negligence was causative of the collision and, therefore, any injury. The Council is liable to the plaintiff in negligence, as it owes the plaintiff a duty of care; and it has breached that duty of care.
As to the pilot’s contributory negligence, the Pilot was aware that the Festival was being held yet he did not take precautions to identify those items that were located in the flight path, their height and whether, as a consequence, they obstructed the proper take-off of the aircraft. Thus, the combination of the failure to land as close as should have been done to the beginning of the runway, to the north, and the failure to ensure that the flight path was unobstructed, resulted in the Pilot colliding with the Ferris wheel.
As between the Council and the Pilot, if it be necessary to assess the comparative culpability, being the degree to which each has departed from the standard of care of the reasonable person, and the relative importance of the acts of the parties in causing the damage, it would seem to the court to be an appropriate assessment that the contributory negligence of the Pilot requires an apportionment of 35% as between the Pilot and the Council.
Conclusion: Court order that Council shall pay the plaintiff damages in the sum of $1,513,023.30 while the pilot shall indemnify and/or contribute, by payment to the crossclaimant, Mid-Coast Council, 35% of the aforesaid damages, being an amount of $529,558.16.
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